(2) Whether Google's search engine is or is not "fair use" has yet to be considered adequatelyby a court because:

The Field case involves unique facts (i.e., the plaintiff "set up" Google to get money from them.

The Parker case relies to some extent on the Field case. The U.S. Third Circuit Court of Appeals affirmed the trial court in Parker, but ordered that its decision not be published. This means that it cannot be relied upon as precedent by other courts. It also may signal that the Court of Appeals does not have full confidence in the decision.

I do not agree that the Field case "clears away copyright questions that have troubled the entire search engine industry," as an attorney with the Electronic Frontier Foundation said.

[For the record, I am not a Google-basher. I like Google. While we're at it, I generally like Ancestry.com, too, and I use it frequently. But I was angry to discover my content on their IBC.]

(3) It is possible that Ancestry.com, Google, or somebody else, could set up a genealogy-specific search engine that would "fairly use" both links and a cache of copyright-protected Web sites.

Now back to our series.

The Digital Millennium Copyright Act

In 1998, the Congress enacted the Digital Millennium Copyright Act (DCMA). There are a number of aspects to this statute, but here, the relevant matter is in Title II of the Act, which is known as the “Online Copyright Infringement Liability Limitation Act.” This part of the law creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. I discuss it here because the court in Field v. Google discussed it and several commenters have mentioned it.

Section 512(b) of the Act provides the so-called system caching "safe harbor" for online service providers. An online service provider is not liable for for infringement of copyright by reason of the "intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider" in certain circumstances. Those circumstances are where:

(A)the material is made available online by a person other than the service provider;

(B)the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and

(C)the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.

Before we go onto paragraph (2), let's examine the portions above. First, the cache must be "intermediate and temporary." In Field v. Google cache , the court had evidence before it that Google stored material for 14 to 20 days. Relying on a case called Ellison v. Robertson, 357 F.3d 1072, 1081 (9th Cir. 2004), involving AOL, the Field court held that 14 to 20 days was "intermediate and temporary."

We don't know how long Ancestry planned to keep material in its cache. There are hints in the company's statements that can be interpreted to suggest a temporary cache and hints that suggest a longer storage. I would suggest that 14-20 days is probably on the outer limits of the plain meaning of "intermediate and temporary." Certainly, if Ancestry intended to keep material in its cache longer than that, they would not qualify for the infringement liability "safe harbor."

Now here's the analysis of the rest of paragraph (1):

(A)the material is made available online by a person other than the service provider;

This provision is met when the copyright holder posts his or her content online. The content owner is "a person other than the service provider."

(B)the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person;

This means that the copyrighted content is accessed by someone other than the copyright owner from the copyright owner. Note that this provision suggests a very temporary caching, because the caching takes place when the content is accessed by a user from the content provider's site. In Field, the court got this wrong. The court described Google, the service provider, as the "other person." If Congress had intended the service provider to be "the other person," Congress would have said so.

The point here is that to take advantage of the safe harbor, Ancestry would have to cache the material temporarily as it was being transmitted between content provider and content user. That's not how they described what they were doing. Further evidence of my point is in subparagraph (C):

(C)the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A) . . . .

Thus, the literal language of Section 512(b) appears not to cover “advance” caching, in which material is copied into a cache for anticipated requests for it, rather than upon the first actual request for it . . . .

David L. Hayes, Advanced Copyright Issues on the Internet (2007) [The link is to a 412-page document. The quote is on page 307.]

This interpretation is also borne out by the legislative history of the DCMA. House of Representatives Report No. 105-551, part2, page 52, includes the following:

For subsection (b) to apply, the material must be made available on an originating site, transmitted at the direction of another person through the system or networkoperated by or for the service provider to a different person, and stored through an automatic technical process so that users of the system or network who subsequently request access to the material from the originating site may obtain access to the material from the system or network.

Ancestry was doing "advance" caching, which would not protect it from infringement claims under the DCMA.Recall that the safe harbor also requires that "the conditions set forth in paragraph (2) are met." Having already found that Ancestry would not qualify for the DCMA safe harbor, we can assume that Ancestry would meet the other requirements without changing the result.

A careful reading of the DMCA leads to the conclusion that Ancestry's IBC would not be safe from infringement claims under the Copyright Act.

Having spent a considerable amount of time on this, I need to take a day off. I meant this to be a four-part series, but so many good questions have been raised in the comments that I will answer (many of them, if not all) in one more post on Friday. Then I'll get back to being a genealogist in this space.

COMING ON FRIDAY: Some Final ThoughtsNotice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

6 comments:

Craig, you mention regarding the Field vs Google cache case, that the court ruled that the cache must be "intermediate and temporary."

In an article written by Chris of The Genealogue, he noted back in the fall of 2006 that Ancestry.com's bots were "looking" at various web sites. Also, when I looked at the pages that Ancestry.com had cached from my site and placed in their "IBC," the pages seem to "stop" being cached around September or October, as later dates ones do not appear, but ones prior to those months do. That would SEEM to indicate that the caching, at least of my site was done around that time.

If Ancestry.com did indeed cache my site (and/or other sites) at this time, even though they did not make the pages public until August, would that have any bearing on the "intermediate and temporary" ruling?

Personally I don't care if Ancestry violated copyright Law - I consider the company UNETHICAL.

Here's what I did - I donated $100 tax deductible dollars to USGenNet http://www.usgennet.org/ to support what others voluntarily share "Free" on the Internet - just my own personal way of saying to MyFamily/Ancestry/The Generations Network - "in your face you greedy money grubbing unethical money making hogs".

I've had enough especially after their fiasco with Family Tree Maker 2008 which immediated preceded the I B C fiasco.

With such a disastrous original release of FTM 2008 - I don't know how anyone can rely on upgrades now offered - I purchased FTM 2008 on line - and returned it within a week for credit - When I called MyFamily to ask if I needed a Return Authorization #, I was told I did not - I did return all received FTM 2008 materials in the packaging they arrived in along with a copy of the confirming e-mail I received when I first order the product marked "Returned for Credit - Please credit my Account." I put all this in a USPS Priority Mail mailer and used USPS Delivery Confirmation to mail this disaster back to MyFamily. My credit card account was credited for all but the original shipping charges of $4.00 and of course I am out the $5.25 it cost me to ship the disaster back. Do yourself a favor - don't order it - then you won't have to return it and you can save yourself $9.25 - in my book MyFamily/Ancestry/The Generations Network still owes me $9.25 for this diaster - However I guess I can tell myself I bought them for $9.25 - Done - finished - kaput is what I am - they can keep their program and their Upgrades/Service Paks - whatever they want to call them.

Enough is Enough!

MyFamily/Ancestry/The Generations Network should stick with what they are good at like what they have done with the Census and stop trying to have it all. After all some day they may have it all but none of it will be of quality - FTM 2008 sure wasn't.

Oh and by the way I currently use Family Tree Maker v. 16 and have used FTM since 1994 but will search for another program if I ever find I NEED to upgrade - "If it ain't broke - I ain't gonna fix it."

I do care whether they broke the copyright laws or not, because I am a victim IN California. My wife suggested that until someone sues them over these practices, we will constantly be repeat victims. Since I have the original terms of SALE for the webspace they appropriated on their server, and a the agreement from August 15, 2001 that the CEO of MyFamily.com stated that my sites would NEVER be bannered, sold, or otherwise used against my wishes, I think I can win. They have locked several of my accounts on their server, because I protested this caching, I have since, due to the lockout had to relocate over 15,000 data pages of genealogy work collected by hundreds of volunteers and dedicated transcriptionsts "for hire" (volunteers but they created the transcripts at the request of my partner and myself from materials my partner provided, at our request). My partner has THOUSANDS of dollars invested personally in HER collection of Biographies and obituaries specific to the three counties in Indiana we have USGenWeb sites for. She personally transcribed, taking years to do it, over 10,000 of them, and solicited the rest. Copyright disclaimers were on EVERY pirated site page, naming her as the copyright holder of the compiled collection. Her specific copyrights to her creative intellectual labors was stolen and displayed against her wishes. We have moved the sites off Rootsweb and to ibssg.org/, BUT the horse had already left the barn.

Craig, a most informative work you are doing. I know of many writers, historians and genealogists who are reading your analysis.

In your discussions of derived works being "transformative" and the intent of such, I seem to remember reading where the company stated that one of the purposes of the "collection" was to "provide for preservation of sources for future generations."

To me this has the sound of permanency to it. Generations is a long long time to keep and display something.

Thank you Craig for this wonderful educational series. Your remaining comments will be devoured by many, including me. I'm hoping that you include a bit on ancestry's Terms and Conditions [http://www.ancestry.com/legal/Terms.aspx] in relation to copyright. I can totally understand your desire to return to genealogy. Thanks again...

I applaud Jeff's efforts & wish him fortitude and hope he wins his case - I simply cannot afford lawsuits and feel the only way for many of us to fight Ance$try is too boycott them and support non-profit genealogical organizations - I do not know at this point if USGenNet will be filing a case against Ance$try but if they do, then I want them to have my support since they are the only nonprofit historical-genealogical web hosting service on the Internet, have no advertisements and copyright always remains with the submitter. Totally the other end of the spectrum from Ance$try who captures others copyright rights with a rather obscure "agreement" one often does not read but rather just clicks "agree" to speed up the submittal process.

I remember when Rootsweb went with Ance$try and the uproar that caused - I saw nothing good to come of it then or in the future and look where things are now.

There is much to be said about ethics - but this is something it appears Ance$try has very little of or shall we say none.